Tuesday, August 3, 2010

Having been a trial lawyer for well over two decades, I'm keenly interested in the public's perception of the judicial process, the practice of law, and what really transpires in an actual courtroom. With the ever-increasing ranks of pseudo-courtroom shows; the burgeoning blogosphere; reporters with unused bar cards spouting legalese; and lawyers heavy on chutzpah but light on credentials out-shouting each other on the TV screen, it seems that the media portrayal of jurisprudence is increasingly diverging from actuality--the real American courtroom.

The tabloidization of high-profile cases has created a distorted, hybrid version of our legal system--much like a locomotive engine, cut loose from the rest of the train. The rest of the train includes the rules of evidence, admissibility, procedure, burden of proof and the presumption of innocence. The engine steams ahead, fascinating to watch as it veers off the tracks. Train wrecks are compelling. In the blogosphere, over the airwaves, in sensational tabloids, mini-trials are conducted, concluded, verdicts pronounced. Those with mouths open, ears closed, cultivate a certain ipsi dixit mentality devoid of civility. Personal attacks substitute for educated, thoughtful or persuasive argument.

In our instant-everything culture, there is a tendency to want everything wrapped up in a sound bite. We see, as in the Anna Nicole Smith case and the Michael Jackson case, an impatience to wait for toxicology results, the conclusion of a thorough investigation. There is an eagerness to turn "what if's" into presumed fact, the presumption that a bit of google searching turns laypersons into forensic experts, detectives, and armchair lawyers.

Sometimes the rampant speculation ultimately proves to be correct, but many times it does not. For several days Richard Jewell was the Atlanta City Bomber, John Mark Karr had killed JonBenet Ramsey, Kobe Bryant had raped a hotel clerk, the Duke Lacrosse players had raped a stripper.

In the media, there is no ramification for getting it wrong. In the real courtroom, there is. No one knows that more than Michael Nifong, disbarred for his bungling of the Duke Lacrosse prosecution. No one feels it more than any trial lawyer who has lived and breathed a case for several years leading up to a trial-- the burden of standing in the shoes of a client whose future hangs in the balance.

Then there is the phenomena I call "blogulgation" -- when a group of bloggers feed off each other's posts, citing each other as reliable sources to bolster the validity of their position. A diatribe by another blogger is tagged as "news" in a cyber game of telegraph, where a surreal "reality" is crafted from amalgamated speculation corroborated not by actual facts or independent investigation but by endorsement of other speculators.

Often regurgitating outdated news, disproven facts, they share such a fanatic devotion to their cultivated theories that they become disturbingly hostile, on a personal level, towards anyone with divergent views. Rather than a quest for enlightenment or intellectual debate, these groups often evolve into a support group for those with identical, albeit misinformed opinions.

Although I appear on a variety of networks discussing numerous topics, I am most frequently asked about my appearances on Nancy Grace. The show is a lightening rod for controversy--viewers divided into two categories: those that love the show and those that love to hate it. Many attorneys who appear on the show receive a mixed bag of effusive fan emails and the smattering of vitriolic admonitions from viewers who suggest the show is not highbrow legal analysis. The show doesn't purport to be highbrow. It is is a forum for the prosecution/victim point of view, those who feel the justice system doesn't effectively deter and punish perpetrators who harm and exploit vulnerable victims.

A case can't be dissected in a few sound bites. The best I hope to do is act as a counterweight, maybe interject a brief point that will serve to plant a seed in the minds of viewers, a reminder that every case, no matter how open and shut it appears to be, will be defended and must be proven. That Nancy Grace interjects her laserlike acerbic wit makes the show entertaining. I know many lawyers and judges who consider it their "little secret" that they are fascinated by the show.

I know Nancy Grace as a dear friend, champion of the underdog, promoter of others in her profession, generous to a fault, wickedly witty, endlessly kind. I have seen her at home with her ever-amused husband, the breathtakingly adorable twins that are the center of their universe--Nancy in sweats, no makeup, the kind of friend you hang out with on the back porch, drinking sweet tea and talking about normal, everyday things that friends share. On the TV screen, we're just two lawyers on opposite sides of an issue. If I get cut off, don't get to wax loquacious, no harm done. TV is fleeting, soon forgotten.

I try to remind people that TV is no substitute for reality, that bloggers are no substitute for quality journalism. As long as we all understand the line between entertainment and reality, the only harm that comes is taking the TV version too seriously.

My advice to anyone interested in the trial process? Pick any courthouse in any town, find a jury trial on the court docket and sit in the courtroom from start to finish. From the motions in limine. voir dire of jurors, opening statements, closings, jury instructions. Listen as the jury's verdict is read. That is our justice system. Accept no substitute.

5 comments:

Listen as the jury's verdict is read. That is our justice system. Accept no substitute.

Then god help anyone accused. With rare exceptions, the media 'verdict' always overrides the evidence in a case, as many wrongly convicted will tell you. The Innocence Project alone, using DNA, has obtained 258 exonerations. Many more have been exonerated by other people.

When the media puts the pressure on, too many policemen, witnesses, prosecutors and judges will bend to their whim. Why does the Dr. Sam Sheppard case still get repeated endlessly? Was nothing learned?

As for your friend, Nancy Grace, please list for me the top ten things she did to ensure that Scott Peterson got a fair trial and an unbiased jury.

Anne Bremner has vigorously campaigned for the release of Amanda Knox - a sadistic sex killer. She has repeatedly misled the media and the public with a number of false claims.

She may be able to suppress the truth about what happened when she was arrested by blocking the release of the investigative reports and video. However, she won't be able to suppress the truth about Amanda Knox.

Judge Massei's 427- page report will be published in English on Monday 9 August. It will be available for download from PMF and TJMK.